Klamberg: Reconstructing the Notion of State of Emergency under Human Rights Law

Public unrest, terrorist attacks, natural disasters and events of equal severity have in recent years prompted states to declare state of emergency. Sometimes, the proclamation of a public emergency is necessary or at least defendable, for example a natural disaster may call for special measures which could not be taken with full respect to the rights for all the obligations under human rights treaties. In other cases, public emergencies can be used as a smokescreen for repressive government policies. Once the necessity for derogation is conceded, it becomes difficult to control whether the suspension of rights amounts to abuse use of power. Serious violations of human rights often accompany emergency situations.

This study first sets out an analytical framework which seeks to answer two questions: what is the role of the sovereign, i.e. the legislative and executive branches of Government? What do states perceive as threats and what consequences will that have for their policies. Next the legislative framework as provided for in human rights regimes is described. The analytical and legal framework is applied to four recent cases: September 11, 2001; Arab Spring; Ebola outbreak in Western Africa and France 2015.